Removal Orders and Stays of Removal

Three different orders carry three very different consequences, and people routinely confuse them. The document you were handed at the border determines whether you can return to Canada next year, in five years, or only with the Minister’s permission.

A departure order is the least severe. You must leave Canada within thirty days after the order becomes enforceable, and you must confirm your departure with the CBSA. If you comply, you may return in future subject to meeting the ordinary entry requirements. If you do not confirm your departure within thirty days, the departure order automatically becomes a deportation order.

An exclusion order requires you to leave immediately and confirm your departure. You cannot return for one year, or five years if the order was issued for misrepresentation. To come back sooner you need an Authorization to Return to Canada.

A deportation order requires you to leave immediately and confirm your departure, and you are permanently barred from returning. Coming back requires an Authorization to Return to Canada in every case, and returning without one can result in a further deportation order.

The Certificate of Departure is what proves you complied. Leaving Canada without obtaining one is treated, in practice, much the same as not leaving at all. On a departure order it is the difference between needing an Authorization to Return and not needing one.

This is one of the most common and most expensive mistakes we see, and it costs people years. It is also entirely avoidable with one conversation before you fly.

This is stated wrongly on a great many websites and it costs people their cases.

There is one statutory stay, under section 231(1) of the Regulations, and it attaches to judicial review of a Refugee Appeal Division decision that rejects or confirms the rejection of a claim. It does not attach to judicial review of a Refugee Protection Division decision. So a claimant with no access to the Appeal Division, which includes designated foreign nationals, claimants found to have no credible basis or a manifestly unfounded claim, and Safe Third Country Agreement exception claimants, gets no automatic stay at all and must bring a motion.

The statutory stay also does not apply to a designated foreign national, to a person inadmissible on grounds of serious criminality, to a person residing in the United States or St. Pierre and Miquelon with an entry report, or where the person is seeking an extension of time to file.

Where there is no statutory stay, the route is a motion to the Federal Court. The test comes from Toth, applying the RJR-MacDonald framework, and it has three parts.

• A serious issue to be tried, meaning the underlying judicial review is not frivolous or vexatious. The threshold is low and this is rarely why a motion fails
• Irreparable harm, which is where motions are won and lost. The harm must be specific to you, individualized, and not compensable in money
• Balance of convenience, weighed against the Minister’s interest in enforcing removal. Where the first two are properly made out, this usually follows

General country conditions evidence is rarely enough on its own. What succeeds is documented and particular: medical treatment that is unavailable, threats directed at you by name, serious consequences for a Canadian child.

Timing is decisive. Motions filed days before a scheduled removal rarely succeed, because there is no time to assemble the affidavit evidence the test demands. If removal is on the horizon, the time to act is now, not when the ticket arrives.

Leave of the Federal Court is required and is decided in writing, without the parties appearing. The application must be filed within fifteen days for a matter arising in Canada, or sixty days for a matter arising outside Canada, running from when you were notified of or became aware of the decision. The applicant’s record follows within thirty days of receiving the tribunal’s reasons. If leave is granted, the hearing takes place no sooner than thirty days and no later than ninety days afterwards.

There is no statutory stay for a pending humanitarian and compassionate application. This is among the most damaging misconceptions clients arrive with, and it is often held with real conviction. A pending H&C is at most a factor in a deferral request to a CBSA removals officer, or a piece of evidence on a stay motion. It is not protection.

There is also a bar. The Minister may not examine an H&C request if another is pending, if you have a refugee claim before the Board, or if less than twelve months have passed since your claim was rejected, withdrawn or abandoned. The bar does not apply where removal would create a risk to life because your country cannot provide adequate medical care, or where it would adversely affect the best interests of a child directly affected. That second exception is broad, heavily litigated, and frequently the practical route through.

A note on who does what. Judicial review at the Federal Court, refugee hearings before the Immigration and Refugee Board, pre-removal risk assessments and stays of removal are legal services that fall outside the scope of practice of a Regulated Canadian Immigration Consultant under IRPA section 91. SAAB Immigration has a working relationship with Dr. Pallavi Kataria of Pallavi Law Office, and where a matter crosses that line she takes it over seamlessly. She is retained directly by the client under her own retainer, and we continue to work the immigration side of the file alongside her. It is a rare combination: an experienced RCIC and a lawyer on the same case.